SHOULDER IMPAIRMENT OF

Summary

The Veteran served on active duty from May 1967 to July 1967. He appeals the denial of service connection for bilateral hearing loss and the remand of claims for right and left foot disabilities. The Veteran also sought service connection for right shoulder, left shoulder, back, neck, and obstructive sleep apnea disabilities. The Board granted service connection for the right shoulder, left shoulder, back, and neck disabilities, finding that the Veteran's current conditions, which clearly existed prior to service, were not aggravated beyond natural progression, but rather were caused by combat training during active duty. The Board assigned great probative value to a January 2020 VA examination and its April 2020 addendum, which opined that the Veteran's current neck, back, and bilateral shoulder disabilities were as likely as not related to active service. Resolving reasonable doubt in the Veteran's favor, service connection was granted for these conditions. For obstructive sleep apnea, the Board granted service connection secondary to service-connected psychiatric, headache, and tinnitus disabilities, relying on a private May 2024 opinion that found the sleep apnea was most likely than not caused or aggravated by these conditions. For bilateral hearing loss, the Board denied service connection, finding the evidence against a nexus to service. A May 2023 VA examination opined that the hearing loss was less likely than not related to service noise exposure or service-connected tinnitus, and this opinion was found to be competent, credible, and more probative than the Veteran's lay statements. The foot claims were remanded for a new VA examination to clarify the etiology and aggravation of the Veteran's foot conditions, as the prior examination applied an incorrect standard.

Rationale

Resolving reasonable doubt in Veteran's favor; Competent and credible VA medical opinion; Opinion found current disability related to active service

Full Decision Text

Citation Nr: 25004555
Decision Date: 04/03/25	Archive Date: 04/03/25

DOCKET NO. 20-28 713
DATE: April 3, 2025

ORDER

Entitlement to service connection for a right shoulder disability is granted.

Entitlement to service connection for a left shoulder disability is granted.

Entitlement to service connection for a back disability is granted.

Entitlement to service connection for a neck disability is granted.

Entitlement to service connection for obstructive sleep apnea is granted.

Entitlement to service connection for a bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a right foot disability is remanded.

Entitlement to service connection for a left foot disability is remanded.

FINDINGS OF FACT

1. Resolving all reasonable doubt in the Veteran's favor, the evidence supports a finding that a right shoulder disability is due to active service. 

2. Resolving all reasonable doubt in the Veteran's favor, the evidence supports a finding that a left shoulder disability is due to active service.

3. Resolving all reasonable doubt in the Veteran's favor, the evidence supports a finding that a cervical spine disability is due to active service. 

4. Resolving all reasonable doubt in the Veteran's favor, the evidence supports a finding that a back disability is due to active service.

5. Resolving all reasonable doubt in the Veteran's favor, the Board finds that sleep apnea is?secondary to service-connected psychiatric, headache, and/or tinnitus disabilities.

6. Bilateral hearing loss is not shown to have been incurred in service or to be due to, etiologically related to, or caused or aggravated by the service-connected disabilities or treatment for the service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right shoulder disability have been met.  38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

2. The criteria for entitlement to service connection for a left shoulder disability have been met.  38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

3. The criteria for entitlement to service connection for a back disability have been met.  38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

4. The criteria for entitlement to service connection for a neck disability have been met.  38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

5. The criteria for entitlement to service connection for obstructive sleep apnea, secondary to service-connected disability, have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for entitlement to service connection for a bilateral hearing loss have not been met.  38?U.S.C. §§?1110, 5107(b);?38?C.F.R. §§?3.102, 3.303(a), 3.304, 3.306, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1967 to July 1967.  He had additional duty with the Army Reserve.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

In January 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38C.F.R. § 20.900; 38U.S.C. §7107.

Service Connection

Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service.  38?U.S.C
 with the Army Reserve.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

In January 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38C.F.R. § 20.900; 38U.S.C. §7107.

Service Connection

Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service.  38?U.S.C. §§?1110, 1131; 38?C.F.R. §§?3.303, 3.304.  To establish service connection for a claimed disability, there must be (1)?medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability.  Hickson v. West, 12?Vet. App.?247 (1999). 

Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service.  38?U.S.C. §?1113(b); 38?C.F.R. §?3.303(d); Cosman v. Principi, 3?Vet. App.?503 (1992).  The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature.  For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 

Secondary?service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability.? 38?C.F.R. §?3.310. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38?C.F.R. §?3.159(a)(2).  Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain.  Barr v. Nicholson, 21?Vet. App.?303 (2007); Washington v. Nicholson, 19?Vet. App.?362 (2005).  Therefore, the Board must assess the competence and credibility of lay statements.  Barr v. Nicholson, 21?Vet. App.?303 (2007). 

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10?Vet. App.?67 (1997). 

A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail.  To deny a claim on the merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9?Vet. App.?518 (1996). 

While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  Timberlake v. Gober, 14?Vet. App.?122 (2000).

1. Entitlement to service connection for a right shoulder disability.

2. Entitlement to service connection for a left shoulder disability.

3. Entitlement to service connection for a back disability.

4.
 the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  Timberlake v. Gober, 14?Vet. App.?122 (2000).

1. Entitlement to service connection for a right shoulder disability.

2. Entitlement to service connection for a left shoulder disability.

3. Entitlement to service connection for a back disability.

4. Entitlement to service connection for a neck disability.

The Veteran claims that a current bilateral shoulder, back, and neck disability is the result of active service.  Specifically, the Veteran attributes the disabilities to an incident when the Veteran was accosted by a drill sergeant. 

The Board notes that prior to active service, in April 1967, the Veteran was in a motor vehicle accident (MVA) and sustained back, neck, and shoulder injuries.

A January 2020 VA examination diagnosed lumbosacral strain, intervertebral disc syndrome; bilateral shoulder strain, osteoarthritis, and degenerative arthritis; and  cervical strain.  The January 2020 VA examiner opined that the claimed back, neck, and shoulder disabilities conditions, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond the natural progression by an injury, event, or illness in service.  The examiner explained that, given the medical evidence of record and a missing hospitalization record from Madigan General Hospital at Fort Lewis, there seemed to be a major injury induced between May 1967 and June 1967 that resulted in the Veteran going from an exemplary solider with perfect performance examinations, rank of 3 out of 250 soldiers, and being deemed fit for duty after the April 1967 MVA, to being medically honorably discharged with severe, chronic and debilitating neck, back and shoulder conditions as documented in the current examination.  Therefore, the Veteran's diagnoses, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness.  However, the examiner opined that the injuries were directly due to the event that occurred after May 1967 to June 1967 where the hospital records were missing but clearly marked to be reviewed in the service separation examination.

In an April 2020 addendum opinion, the examiner stated that the Veterans timeline of events showed that the Veteran sustained a MVA and then was cleared and fit for duty, then was ranked number 3 in his squadron.  The Veteran had photos consistent with being healthy and no issues to the neck, back, or shoulders carrying a 50 pound drum just a few days prior to him being "medically discharged."  On top of that, the separation examination noted the Veteran had a hospitalization from May to June that mysteriously was not available.  The examiner stated that it was clearly documented and handwritten on the separation examination for medical discharge, to review those specific records as they were the reason for the current situation. The minor MVA that the Veteran fully recovered from did not warrant or substantiate those large of problems.  In addition, records showed that the Veteran was in full time participatory performance without noted physical injuries or continuing medical issues, from May 17 to on or about June 8, 1967.  Therefore, the examiner opined that the claimed conditions were clearly and unmistakably not aggravated beyond the normal progression by the May 1967 event, but at least as likely due to the physical injuries sustained during combat training during active duty from about June 8, 1967, to July 12,1967, as evidence showed the Veteran made a full recovery from the April motor vehicle accident, and the injuries thereafter were caused during combat training during active duty from about June 8, 1967, to July 12,1967.

The Board assigns great probative value to the January 2020 medical opinion and its April 2020 addendum because of the training, experience, and thoroughness of the examiner.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  Hayes v. Brown, 5?Vet. App.?60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1?Vet. App.?190 (1992).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing
7.

The Board assigns great probative value to the January 2020 medical opinion and its April 2020 addendum because of the training, experience, and thoroughness of the examiner.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  Hayes v. Brown, 5?Vet. App.?60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1?Vet. App.?190 (1992).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches.  As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4?Vet. App.?467 (1993). 

The January 2020 medical opinion and its April 2020 addendum opinion are consistent with the evidence in the case and provided adequate reasons and bases in support of the conclusion.  The examiner opined that the current bilateral shoulder, neck and back disabilities were as likely as not related to active service.  The opinion of the April 2020 examiner is highly probative because it is supported by rationale and provided by a trained medical professional.  The examiner specifically identified and discussed the Veteran's contention and theory concerning service and the claimed disability.  Thus, the Board finds the January 2020 medical opinion and its April 2020 addendum medical opinion to be competent and credible. 

The Board cannot ignore the medical evidence opining that current neck, back and bilateral shoulder disabilities are related to or began during active service.  Because of the January 2020 medical opinion and April 2020 addendum opinion, the Board finds that the evidence is, at least, in approximate balance regarding whether current neck, back, and bilateral shoulder disabilities are related to active service. 

Accordingly, based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds the competent medical evidence supports a finding that current neck, back, and bilateral shoulder disabilities are related active service.  Therefore, resolving reasonable doubt in favor of the Veteran, service connection for neck, back, and bilateral shoulder disabilities are warranted and are granted.  38?U.S.C. §?5107.

5. Entitlement to service connection for obstructive sleep apnea.

The Veteran is seeking service connection for sleep apnea. The Veteran contends that the sleep disability is caused or aggravated by service-connected disabilities. 

In a private May 2024 opinion, a physician provided a medical opinion that the Veteran's sleep apnea was most likely than not caused and/or aggravated by the service-connected mood disorder, migraines, and tinnitus.  In a thorough, detailed, and extension report, the examiner provided and discussed several studies that supported the opinion that there was a direct connection between tinnitus, migraines, and psychiatric conditions, and OSA. 

The Board assigns great probative value to the private May 2024 medical opinion because of the training, experience, and thoroughness of the examiners.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  Hayes v. Brown, 5?Vet. App.?60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1?Vet. App. 190 (1992).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches.  As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  Guerrieri v. Brown, 4?Vet. App.?467 (1993). 

The private May 2024 medical opinion was made after examination and review of the record, was consistent with the evidence in the case, and provided adequate reasons and bases in support of the conclusion.  The examiner opined that the claimed sleep apnea was secondary to and/or aggravated by service-connected psychiatric, migraine, and tinnitus disabilities.  The examiner based that opinion on the Veteran's history and lay statements, and first-hand clinical experience.  The opinion of the private May 2024 examiner is highly probative because it is supported by rationale and provided by a trained medical professional.  The examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability.  Thus, the Board finds the medical opinion to be competent and credible.  The private
 opinion was made after examination and review of the record, was consistent with the evidence in the case, and provided adequate reasons and bases in support of the conclusion.  The examiner opined that the claimed sleep apnea was secondary to and/or aggravated by service-connected psychiatric, migraine, and tinnitus disabilities.  The examiner based that opinion on the Veteran's history and lay statements, and first-hand clinical experience.  The opinion of the private May 2024 examiner is highly probative because it is supported by rationale and provided by a trained medical professional.  The examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability.  Thus, the Board finds the medical opinion to be competent and credible.  The private May 2024 examination supports a finding that a current sleep apnea diagnosis is at least as likely as not related to service-connected psychiatric, headache, and tinnitus disabilities. 

The Board acknowledges that there may be contradictory evidence of record. However, the Board cannot ignore the medical evidence finding that the Veteran's sleep disability was caused by a service-connected disability.  Therefore, the Board finds that the evidence is at least in approximate balance regarding whether the Veteran has obstructive sleep apnea that is related to service or a service-connected disability. 

Accordingly, based on the foregoing, and resolving doubt in the Veteran's favor, the Board finds that the competent medical evidence supports a finding that sleep apnea is etiologically related to service-connected psychiatric, headache, and tinnitus disabilities.  Therefore, service connection for sleep apnea is warranted, and service connection for sleep apnea, secondary to service-connected disabilities, is granted.  38?U.S.C. §?5107.

6. Entitlement to service connection for a bilateral hearing loss.

The Veteran asserts that a current bilateral hearing loss disability is the result of noise exposure during active service.

At a May 2023 VA examination, the examiner diagnosed bilateral sensorineural hearing loss.  The examiner opined that the claimed condition was less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed injury, event, or illness in service.  The examiner explained that there was no significant permanent shift in hearing thresholds beyond test variability from entrance in January 1967 to separation in June 1967, which was objective evidence of no permanent auditory damage on active duty from conceded noise.  Although noise exposure was conceded and the relationship of noise, auditory damage and hearing loss was well-established, auditory damage and hearing loss were not conceded based on noise alone.  There must be a nexus of auditory damage to relate current hearing loss to service noise and not another etiology.  The examiner opined that the evidence was against a nexus in this case; therefore, it is less likely than not that the hearing loss was related to service noise exposure.

The May 2023 examiner noted that the Veteran was service-connected for tinnitus.  The examiner stated that tinnitus is not a cause of hearing loss.  Tinnitus and hearing loss can be the result of the same insult to the auditory system.  Tinnitus and hearing loss can be the result of unrelated insults to the auditory system.  As there was no significant hearing loss related to service, the examiner opined that it is less likely than not (likelihood is less than approximately balanced or nearly equal) that hearing loss was due to or the result of the service-connected tinnitus.

The May 2023 examiner stated that the Veteran's claimed condition was not at least as likely as not aggravated by a service- connected disability. 

There are no other competent, adequate etiology opinions of record.

The only competent, probative evidence that provides a link between the claimed condition and service comes from the Veteran himself.  The Board acknowledges the Veteran's assertions that the claimed disability is due to service or a service-connected disability.  However, there is no competent medical opinion to establish an etiological relationship between the claimed disability and service, and the Board finds that a competent medical opinion is required to provide an opinion on this medical issue.  The Board finds that the Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating hearing disabilities, is not competent to provide a probative opinion as to whether any condition was either caused or aggravated beyond the natural progression by any incident of active service, or by the service-connected disabilities.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any condition.  While the Veteran may state that he experiences hearing difficulty, the Veteran is not competent to provide a diagnosis of a specific condition, or to opine as to the etiology of any condition as those issues fall outside the realm
 expertise in diagnosing and treating hearing disabilities, is not competent to provide a probative opinion as to whether any condition was either caused or aggravated beyond the natural progression by any incident of active service, or by the service-connected disabilities.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any condition.  While the Veteran may state that he experiences hearing difficulty, the Veteran is not competent to provide a diagnosis of a specific condition, or to opine as to the etiology of any condition as those issues fall outside the realm of common knowledge of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board is not free to substitute its own judgment for a medical expert.  Colvin v. Derwinski, 1 Vet. App. 171 (1991).  The Board finds the May 2023 VA examiner's opinion to be competent, credible, and persuasive.  The May 2023 VA examiner opined that there it was less likely as not that bilateral hearing loss was related to or caused by or aggravated by service or a service-connected disability. The Board finds the May 2023 VA opinion to be more probative than the lay statements of record.  The opinion of the May 2023 VA examiner is highly probative because it is supported by rationale and provided by a trained medical professional.  The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability.  Accordingly, the May 2023 VA examiner's opinion is found to carry significant weight.

Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  Hayes v. Brown, 5 Vet. App. 60 (1993) (responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached.  As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  To the extent that the Veteran's lay statements could be found to be competent and credible, the Board finds that they are outweighed by the May 2023 VA examination opinion because of the examiner's medical training. 

The Veteran has not submitted competent, probative medical evidence which supports a finding that any hearing loss condition is related to service or caused or aggravated by service or a service-connected disability.

After a review of the evidence of record, the Board finds that the weight of the evidence is against the claim and against a finding that bilateral hearing loss is related to service or a service-connected disability.  The most persuasive evidence of record does not support that contention.

Accordingly, the Board finds that the weight of the persuasive evidence is against the claim of entitlement to service connection for bilateral hearing loss.  The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran.  Therefore, the claim must be denied.  38 U.S.C. § 5107.

REASONS FOR REMAND

1. Entitlement to service connection for a right foot disability is remanded.

2. Entitlement to service connection for a left foot disability is remanded.

At a January 2021 Board hearing, the Veteran asserted that a bilateral foot disability was aggravated by service.

The Veteran stated that the ordinary wear and tear of active service, to include marching and running in boots, aggravated a pre-existing foot disability.

A January 2020 VA examination diagnosed bilateral pes planus and plantar fasciitis.  The January 2020 examiner opined that the Veteran entered service with arch supports noted on enlistment examination in January 1967.  The Veteran's length of time in service did not substantiate an aggravation permanently and the development of additional diagnosis of plantar fasciitis.  Therefore, the Veteran's foot condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an injury, event, or illness in service. 

When
 by service.

The Veteran stated that the ordinary wear and tear of active service, to include marching and running in boots, aggravated a pre-existing foot disability.

A January 2020 VA examination diagnosed bilateral pes planus and plantar fasciitis.  The January 2020 examiner opined that the Veteran entered service with arch supports noted on enlistment examination in January 1967.  The Veteran's length of time in service did not substantiate an aggravation permanently and the development of additional diagnosis of plantar fasciitis.  Therefore, the Veteran's foot condition which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an injury, event, or illness in service. 

When VA provides an examination or obtains an opinion, the examination or opinion must be adequate.? Barr v. Nicholson,?21?Vet. App.?303?(2007).  The Board finds the January 2020 opinion to be incomplete as it appears the examiner applied an incorrect standard for a pre-existing condition.  When a condition is not noted at entrance to service, there must be clear and unmistakable evidence to establish that condition preexisted entrance to service.  When a Veteran is found to have a pre-existing condition, the examiner must opine whether there is clear and unmistakable evidence that the disability did?not?increase in severity beyond the natural progression of the disease during service.  Here, an opinion regarding aggravation was provided.  In the rationale for the aggravation opinion, the examiner explained that there was no permanent aggravation of the disability by any event, injury, or illness during service.  The examiner did not discuss the Veteran's contention that the stress of active service and tight boots aggravated the foot disability.  Thus, the examiner applied an incorrect standard for service connection based on aggravation.  Because the January 2020 examiner did not apply the correct standard, a pre-decisional duty to assist error occurred.  Therefore, the Board finds that remand for additional examination is necessary.

The Veteran is reminded that the duty to assist is not a one-way street. A Veteran is required to cooperate with the examiner's efforts to evaluate the nature and current severity of symptomology.  Wood v. Derwinski,1?Vet. App.?190?(1991).  The Veteran is notified that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of these claims.  The consequences of failure to cooperate with or report for a VA examination without good cause may include denial of the claim.? 38?C.F.R. §?3.655.  The Veteran is notified that failure to cooperate during the requested VA examination may result in an adverse determination.  38?C.F.R. §?3.655; Connolly v. Derwinski, 1?Vet. App.?566?(1991).

The matters are REMANDED for the following action:

1. After obtaining any necessary releases, obtain all relevant VA and private medical records not already associated with the claims file.  All attempts to obtain the records should be fully documented, and a negative response should be requested if no records are available.

2. Obtain a VA medical opinion to determine the etiology of any diagnosed right or left foot disability.  The examiner must review the claims file, to include a copy of this Remand, and consider the Veteran's lay statements regarding symptoms during and since service.  A clearly stated rationale with references to the record should be provided for each opinion.  The examiner should:

(a.) Diagnose all foot disabilities found and noted in the record during or contemporary to the pendency of the claim.

(b.) Opine whether any left or right foot disability, which was noted at entrance to service, was clearly and unmistakably (undebatably) not aggravated during service from May 1967 to July 1967.  The examiner is advised that an opinion based on the lack of medical evidence without considering the Veteran's lay reports is inadequate. The examiner should explain the rationale for that opinion.  The examiner should consider the Veteran's contention that the active nature of service and the service footwear aggravated the foot disabilities.

(c.) Opine whether it is as likely as not that any foot disability, had its onset in service or is otherwise related to any incident of service to include the Veteran's boot camp activities, including service footwear.

(d.) If there is a more likely etiology for any foot disability than service, the examiner should explain why that other etiology is more likely.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mondesir, Eric

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applic